The Department of Justice office that will have to determine whether prosecutor Sal Perricone violated internal federal rules or state ethics mandates when he left snarky anonymous postings on online news stories has received more than 1,000 complaints annually in recent years about potential misconduct by Justice employees. But the Office of Professional Responsibility opens investigations in just a fraction of those complaints, dismissing most as frivolous.

View full sizeMichael DeMocker, Times-Picayune archiveU.S. Attorney Jim Letten acknowledged this week that Sal Perricone was Henry L. Mencken1951, a frequent NOLA.com poster known for acerbic comments on various subjects, including an ongoing federal probe he was leading.

Of the 1,204 complaints received in 2010, the office decided 183 warranted further review, beginning 60 "full investigations" and 123 "inquiries." Of the 105 investigations closed in 2010, the office found "professional misconduct" in just 24 cases, according to the division's annual report.

The bulk of complaints that lead to serious probes are those that are based on judicial opinions or, as in Perricone's case, are referrals from within the agency, the report noted.

U.S. Attorney Jim Letten acknowledged this week that Perricone was "Henry L. Mencken1951," a frequent NOLA.com poster known for acerbic comments on various subjects, including an ongoing federal probe he was leading. Perricone revealed his secret identity to his bosses after attorneys for Jefferson Parish landfill owner Fred Heebe, who is targeted in the federal investigation, filed a lawsuit speculating that Perricone was in fact "Mencken."

While Letten recused Perricone from any cases he had opined on, he emphasized that any determination about whether the prosecutor broke rules will be determined by the Office of Professional Responsibility.

The department's ethics lawyers have taken on a higher profile in recent years with the release of reports about whether some Justice attorneys during President George W. Bush's administration overstepped legal bounds in their recommendations about the use of torture on terrorist suspects. The office also issued reports on whether the Bush administration improperly politicized the Justice Department with the termination of certain U.S. attorneys they didn't deem sufficiently loyal.

The Office of Professional Responsibility has also come under criticism, such as in a 2010 USA Today investigation that concluded that even when the office finds that a prosecutor committed misconduct, he or she is more often reprimanded or suspended instead of fired.

The Office of Professional Responsibility has also been criticized for taking too long with investigations. Last year, the Justice Department announced a new office, the Professional Misconduct Review unit, that will review OPR findings if a career prosecutor is found guilty of "intentional or reckless professional misconduct."

Attorney General Eric Holder last year said the new unit will provide "consistent, fair, and timely resolution of these cases."

The most common issues the office handles are complaints about prosecutors, such as accusations that they made improper remarks to a jury or neglected to give the defense material that was favorable to the accused, according to the 2010 report.

In an interview Friday, Letten noted that The Office of Professional Responsibility reviews are commonplace, saying he's been under the office's scrutiny himself after a complaint was filed.

In Perricone's case, legal experts said the office's review probably will center on DOJ rules, as well as Louisiana's Rules of Professional Conduct for attorneys.

Letten declined to say whether the OPR investigation is criminal or investigative in nature. Experts said a potential criminal investigation probably would focus on whether Perricone revealed information known only to a federal grand jury in his online posts.

"The DOJ can pursue anything it deems appropriate depending on the facts it uncovers... There are consequences for violations of DOJ policy, and regulations and such," Letten said.

At a minimum, the inquiry will seek to establish whether Perricone violated a Justice Department prohibition against lawyers publicly commenting on pending matters. The U.S. Attorneys' Manual notes that lawyers should try not to prejudice court proceedings by offering opinions about a defendant's guilt or making comments about that person's character.

The manual also warns Justice employees about potential conflicts of interest, such as creating "an appearance that the employee's official duties were performed in a biased or less than impartial manner."

Some of Perricone's comments would seem to step over those lines, such as a September 2011 posting that said Heebe comes from a "long line of corruptors." He also suggests that Heebe, who has not been charged with any crimes, would be smart to cooperate with the feds because his "goose is cooked."

As an attorney licensed in Louisiana, Perricone also could face an investigation from the Louisiana Attorney Disciplinary Board. Charles Plattsmier, chief disciplinary counsel, can take up cases that come to the board's attention rather than waiting for a complaint to be filed.

Although Plattsmier's agency doesn't confirm pending investigations, in a case like this, he said, the board typically waits to see what federal authorities do before launching a probe.

The Louisiana Rules of Professional Conduct say that prosecutors must "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

Monroe Freedman, a law professor at Hofstra University, said that rule, based on the American Bar Association model code, is about allowing due process for people accused of a crime.

"What that means is the prosecutor condemning that person before his or her family, neighbors, business associates and the public generally," Freedman said. "It is very unfair."

While Perricone made his comments under the veil of "Mencken1951," Freedman said the prosecutor should have foreseen that his persona could be unmasked. "In that sense, even though he begins by being anonymous, he is speaking under color of law as a prosecutor," Freedman said.

The Office of Professional Responsibility's 2010 annual report notes that the results of investigations are handed over to the Office of the Deputy Attorney General. That office is led by James Cole.

As it happens, Cole was mentioned, although not by name, by the online commenter "campstblue," which many in the legal community believe was a handle Perricone used before he became "Mencken1951."

In a comment, "campstblue" ridiculed The Times-Picayune for quoting local attorney Pat Fanning, who was prosecuted unsuccessfully by Cole in 1990 in a case that revolved around a local bookmaker.

Fanning "forgets his own mouth got him indicted once and if it wasn't for incompetent prosecutors, he WOULD have authoritative stories to tell about jail life," campstblue wrote.

One of those "incompetent prosecutors" was Cole, who now holds Perricone's fate in his hands.